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Volume 15
Issue 1 Yale Human Rights and Development Journal
Article 6
2-18-2014
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INTRODUCTION
During the 1990s, New York City Mayor Rudy Giuliani cut taxes,
eliminated thousands of city jobs, and significantly decreased funding to
the city's university system, health system, and housing support system.'
The cuts to city government reflected a continuation of a philosophy of city
governance that began over a decade earlier under Mayor Ed Koch who
announced that the job of the government was to "get out of the way." 2 Yet
this downsizing of New York's government was accompanied by the
simultaneous upsizing of its police force. Over the 1990s, New York City
added 6,000 new police officers to its ranks, giving it the most police
officers per capita of any out of the ten largest cities in the United States,
and expanded public safety funding by fifty three percent.3 The larger
police force was put to task with a more active and expansive approach to
policing. The New York Police Department (NYPD) launched new policing
initiatives that resulted in over 175,000 individuals in New York being
stopped and frisked by police officers in one fifteen-month period,4 a
number that would grow to over 575,000 in 2009.5 Stops were also
accompanied by a massive increase in arrests. In 1998, the NYPD arrested
over 100,000 more people than it had in 1993, despite the fact that the
number of reported crimes had dropped by nearly 300,000.6 If the NYPD
was any indication, the New York City government was doing anything
but getting out of the way.
While the expansion of New York's police force in an era of small urban
governance may appear to be anomalous, the rise of neoliberalism helps
resolve this apparent contradiction. In its most narrow definition,
neoliberalism is a system of economic ideas and policy initiatives that
emphasize small government and market-based solutions to social and
1. KIM MOODY, FROM WELFARE STATE TO REAL ESTATE: REGIME CHANGE IN NEW YORK CITY,
1974 TO THE PRESENT 132-41, 151 (2007).
2. ERIC LICHTEN, CLASS, POWER & AUSTERITY: THE NEW YORK CITY FISCAL CRISIS 18 (1986).
3. BERNARD E. HARCOURT, ILLUSION OF ORDER: THE FALSE PROMISE OF BROKEN WINDOWS
POLICING 94-96 (2001); MOODY, supra note 1, at 151.
4. ELLIOT SPITZER, OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, THE NEW YORK
CITY POLICE DEPARTMENT'S "STOP AND FRISK" PRACTICES 88 (1999), available at
www.oag.state.ny.us/press/reports/stop-frisk/stop-frisk.html.
5. CENTER ON RACE, CRIME AND JUSTICE AT JOHN JAY COLLEGE OF CRIMINAL JUSTICE, STOP,
QUESTION & FRISK POLICING PRACTICES IN NEW YORK CITY: A PRIMER 3 (Mar. 2010) [hereinafter
STOP, QUESTION & FRISKI.
6. LOIC WACQUANT, PUNISHING THE POOR: THE NEOLIBERAL GOVERNMENT OF SOCIAL
INSECURITY 263 (2009).
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11. For example, one study in New York City found that the NYPD detained and frisked
about nine individuals for every person they arrested. SPITZER, supra note 4, at 111. Given that
police to not detain most people they interact with, it is safe to assume that the vast majority of
citizen-police interactions do not lead to incarceration.
12. See STOP, QUESTION, AND FRISK, supra note 5, at 11 (citing New York Civil Liberties
Union Report). The New York Civil Liberties Union refers to individuals who are neither
arrested nor issued a summons during a police stop as "Innocent New Yorkers." Id.
13. See DAVID HARVEY, A BRIEF HISTORY OF NEOLIBERALISM 48 (2005) (reporting that the
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NYPD has become less accountable to the articulated concerns of the city's
poorer residents.2
The lack of structures to ensure police accountability to the concerns of
poor communities is particularly troubling given the new policing
strategies pursued by the NYPD, which I discuss in the third sub-part of
Section III. In the early 1990s, the NYPD adopted the strategy of ordermaintenance policing, which emphasizes the policing of low-level
disorder.23 Although its definition is heavily contested, 24 social disorder can
be thought of as "incivility, boorish, and threatening behavior" and may
encompass behaviors like public drinking, vandalism, and panhandling. 25
The implementation of disorder policing has led to the widespread use of
punitive policing techniques against poor communities. 26 Unlike earlier
eras, state policies under neoliberalism primarily approach the problems of
poverty through the police. 27 These practices of policing create a punitive
bind, where the state relies on police power to address the consequences of
poverty. 28 This approach fails to address the underlying causes of disorder
and leads to increased incarceration of poor communities. 29
In the final sub-part of Section III, I consider the rise in the prevalence
of stop-and-frisk policing techniques by the NYPD in the 1990s alongside
neoliberal order-maintenance strategies. These harsh policing tactics have
been used disproportionately against people of color and poor
communities, a result which serves to undermine police legitimacy, breed
insecurity, and even potentially increase crime.30 I argue that stop-and-frisk
policing techniques represent a form of public punishment, a symbolic
assertion of state power utilized as a tool to regulate poor communities in a
neoliberal era of small government in other arenas. 31
In discussing neoliberalism throughout this Note, I rely primarily on a
definition put forth by David Harvey. Harvey defines neoliberalism as "a
theory of political economic practices that proposes that human wellbeing
can best be advanced by liberating individual entrepreneurial freedoms
and skills within an institutional framework characterized by strong private
property rights, free markets, and free trade." 32 Proponents of neoliberalism
assert that government should be restricted from interfering with economic
matters except to the extent that it protects private property, creates new
22. See discussion id.
23. See discussion infra Part III.C.
24. WESLEY G. SKOGAN, DISORDER AND DECLINE: CRIME AND THE SPIRAL OF DECAY IN
AMERICAN NEIGHBORHOODS 3-9 (1990).
25. GEORGE L. KELLING & CATHERINE M. COLES, FIXING BROKEN WINDOWS: RESTORING
ORDER AND REDUCING CRIME IN OUR COMMUNITIES 14-15 (1996). Disorder also refers to
physical disorder (as opposed to social disorder), like broken windows, run-down buildings,
and vacant lots. SKOGAN, supra note 24, at 4.
26. See discussion infra Part III.C.
27. See discussion infra id.
28. See discussion infra id.
29. See discussion infra id.
30. See discussion infra Part III.D.
31. See discussion infra Part III.D.3.
32. HARVEY, supra note 13, at 2.
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33. Id.
34. Id. at 3 (quoting Paul Treanor, Neoliberalism: Origins, Theory, Definition (no longer
available, previously available at http://web.inter.nl.net.users/paul.treanor/neoliberalism.
html/).
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behind the New Deal and later the Great Society, emphasizing the role of
government fiscal intervention in stabilizing the business cycle, thereby
improving economic outcomes.35 American Keynsianism's belief in
government spending helped lay the groundwork for the American semiwelfarist state, which under the New Deal and Great Society sought to
redistribute wealth, create full employment, and fight poverty. 36
The managerialist and welfarist approach of the Keynesian state was
the target of criticism by neoliberal theorists. The Chicago School, a group
of economists, law professors, and other scholars at University of Chicago,
helped create a neoliberal intellectual movement in the United States
starting in the years after World War II.37 The Chicago School's works
collectively underwrote a basic theory of neoliberalism (though it would
not be called that until later), which, according to its leader Milton
Friedman, stood "for the belief in the efficacy of the free market as a means
of organizing resources [and] for skepticism about government intervention
into economic affairs . . . ."38 David Harvey has shown that an array of
corporate and elite-funded think tanks and corporate interests groups took
up the Chicago School's cause and began pushing the neoliberal cause in
the 1970s and would soon capture the platform of the Republican party.39
President Ronald Reagan's election in 1980 symbolized the rise of
neoliberalism as a powerful political force and ideology. Reagan ran on a
platform that was anti-welfare, anti-taxes, and smaller government, and as
president he attempted to pursue these broad neoliberal reforms, 40
although the success of his neoliberal legislative project is contested. 41 But
Reagan's most significant contribution to the spread of neoliberalism was
that he took "what had hitherto been minority political, ideological, and
intellectual positions and made them mainstream." 42 The Reagan
35. MICHAEL B. KATZ, IN THE SHADOW OF THE POORHOUSE: A SOCIAL HISTORY OF WELFARE
IN AMERICA 245 (1996). John Maynard Keynes advocated for strong central government fiscal
policies, typically in the form of spending, to ease the economic crisis of the Great Depression.
ALICE O'CONNOR, POVERTY KNOWLEDGE: SOCIAL SCIENCE, SOCIAL POLICY, AND THE POOR IN
TWENTIETH-CENTURY U.S. HISTORY 140 (2001).
36. WACQUANT, supra note 6. See O'CONNOR, supra note 35, at 140 (noting the
"redistributive public spending and aggressive full employment guarantees" of early
American Keynesianism); KATZ, supra note 35, at 259-80 (describing the War on Poverty and
the expansion of welfare spending). None of this is to suggest that Keyensianism was the sole
factor that enabled that rise of the semi-welfare state. For a comprehensive history of the rise of
the American semi-welfare state, see generally KATZ, supra note 35, at 117-282.
37. See generally Harcourt,supra note 10, at 121-150 (describing the intellectual history of
the neoliberal thought of Chicago School intellectuals, especially as it relates to crime).
38. Id. at 131 (quoting Milton Friedman, Schools at Chicago, Archives of the
Communications Department of the University of Chicago (1974), at 2).
39. HARVEY, supra note 13, at 43- 44.
40. Id. at 51-54 (describing President Reagan's policy platform).
41. Compare KATZ, supra note 35, at 295-99 (detailing federal cuts to welfare programs
under President Reagan), and HARVEY, supra note 13, at 51-54 (describing President Reagan's
tax reforms, deregulation measures, and anti-labor efforts), with PAUL PIERSON, DISMANTLING
THE WELFARE STATE? REAGAN, THATCHER, AND THE POLITICS OF RETRENCHMENT 53-128 (1994)
(showing that with the exception of housing, President Reagan was unable to retrench most
federal welfare programs).
42. HARVEY, supra note 13, at 62.
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43. Id.
44. See KATZ, supra note 35, at 324-34 (describing Clinton's welfare reform efforts).
45. HARCOURT, supra note 10, at 240 (quoting Barack Obama). Another rhetorical theme of
Obama's campaign was that the solution to poverty and other social ills was greater personal
responsibility and not government intervention. See, e.g., Susan Page, Obama to NAACP: Blacks
Must Seize Responsibility, USA
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Between 1975 and 1995, the inflation adjusted median welfare payment for
a family of four decreased by about forty-six percent. 49 Federal government
support has similarly fallen over this time period for unemployment
insurance, occupational disability insurance, housing for the poor, and job
training.50 At the same time, neoliberal tax structures and economic policies
have brought about unprecedented levels of socioeconomic inequality.
Since President Reagan and his Laffer curve-based tax cuts, the income tax
has become increasingly regressive and no longer redistributes income in
any meaningful way.51 Critics of neoliberal reforms blame the undoing of
the progressive income tax system, along with corporate tax breaks, for the
unprecedented levels of socioeconomic inequality. 52 In 1980, the top ten
percent of wealthiest Americans earned around thirty five percent of all
income, but by 2007 they earned nearly fifty percent. 53 The United States'
Gini Ratio, an index of socioeconomic inequality, has risen from .40 in 1980
to .46 in 2007,54 and is now one of the highest among industrial countries.55
The retraction of the welfare state and rising socioeconomic inequality
may impact the policing cities. Poverty and socioeconomic inequality are
both positively correlated with crime and particularly with violent crime.56
To the extent that neoliberal reforms to welfare exacerbated the effects of
to public services essential to the poor).
49. WACQUANT, supra note 6, at 49.
50. Id. at 52-53.
51. HARVEY, supra note 13, at 26. For example, between 1980 and 2003 the marginal tax rate
for the top income bracket fell from 70 percent to 35 percent. History of Federal Individual Income
Bottom and Top Bracket Rates, NATIONAL TAXPAYERS UNION, http://www.ntu.org/taxbasics/history-of-federal-individual-1.html (last visited June 20, 2011). The effective tax rate on
capital dropped from 45 percent in 1981 to 37 percent in 1996. Duane Swank, Tax Policy in an
Era of Internationalization:Explaining the Spread of Neoliberalism, 60 INT'L ORG. 847, 849 (2006).
One notable exception to this trend is the Earned Income Tax Credit, a progressive scheme
which provides tax credits on a progressive basis to working low-income families. See generally
V. Joseph Hotz, The Earned Income Tax Credit, in MEANS-TESTED TRANSFER PROGRAMS IN THE
available at
(Robert
A.
Moffitt
ed.,
2003),
UNITED
STATES
141,
141-51
http://www.nber.org/chapters/cl0256.pdf (tracing the history of the Earned Income Tax
Credit).
52. See, HARVEY, supra note 13, at 16-18 (various graphs showing higher socioeconomic
inequality in the neoliberal era). But see Timothy Noah, United States of Inequality: Can We Blame
Inequality on Republicans?, SLATE, (Sep. 09, 2010, http://www.slate.com/articles/news-andpolitics/ the..great-divergence/features/2010/the-united states. of inequality/can we_blame
income inequality-on republicans.htmI (arguing that government policies and practices
unrelated to taxes more completely explain the growth in economic inequality than do changes
to the tax system).
53. Emmanuel Saez, Striking it Richer: The Evolution of Top Incomes in the United States (Jul.
17, 2010), http://elsa.berkeley.edu/-saez/saez-UStopincomes-2008.pdf.
54. Gini Ratios for Households, by Race and Hispanic Origin of Householder: 1967 to 2007, U.S.
CENSUS BUREAU, http://www.census.gov/hhes/www/income/data/historical/household/
h04.html (last visited Jun. 20, 2011).
55. OECD Forum on Tackliny Inequality, Growing Income Inequality in OECD Countries:
2011),
Policy
Tackle
It?
(May
Drives
it
and
How
Can
What
http://www.oecd.org/dataoecd/32/20/47723414.pdf, at 6.
56. See Ching-Chi Hsieh & M. D. Pugh, Poverty, Income Inequality, and Violent Crime: A
Meta-Analysis of Recent Aggregate Data Studies, 18 CRIM. JUST. REV. 182 (1993); Richard
Wilkinson, Why is Violence More Common Where Inequality Is Greater?, 1036 ANNALS N.Y. ACAD.
SC. 1 (2004).
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HACKWORTH,
THE
NEOLIBERAL
CITY:
GOVERNANCE,
IDEOLOGY,
AND
DEVELOPMENT IN AMERICAN URBANISM 24 (Cornell University Press 2006); Harvey, supra note
13, at 45.
59. For example, Section 8 vouchers displaced a federal commitment to public housing, the
development of which was controlled by local agencies. HACKWORTH, supra note 58, at 51.
60. See id. at 25 (graph showing rising municipal debts); see also Harvey, supra note 13, at
45-48 (describing New York City's 1975 debt crisis).
61. HACKWORTH, supra note 58, at 17-18. For example, banks refused to extend credit to
the city of Cleveland while it was in the midst of a financial crisis unless the city agreed to
privatize its power supply. Id. at 1-2.
62. Id. at 38-39.
63. See generally id. at 17-39 (arguing that cities have had to become more entrepreneurial
in part because of the loss of control of federal funding).
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64. See id. at 126-28 & 151-53 (describing corporatized gentrification and the impact of
commercial development on urban downtowns).
65. HARVEY, supra note 13, at 47.
66. See generally NEIL SMITH, THE NEW URBAN FRONTIER: GENTRIFICATION AND THE
REVANCHIST CITY (1996). Smith and other geographers' works have identified a variety of
factors that facilitate gentrification under neoliberalism. Developers looking to profit from
low-cost land were aided by neoliberal federal and state policy reforms that replaced
centralized government redevelopment efforts of poor neighborhoods with market-driven,
incentive-based development programs like special enterprise and empowerment zones. See
HACKWORTH, supra note 58, at 128-31. At the same time, neoliberal urban government policies
eliminate support for the urban poor and the homeless and begin to more aggressively remove
unwanted individuals through eviction, foreclosure, and redevelopment policies. See SMITH,
supra note 66, at 24, 221. Financial institutions play a particularly significant role in neoliberal
gentrification. Deregulated financial institutions are able to provide capital to finance
development in riskier neighborhoods while the globalization of capital flows makes it easier
for developers to access capital to invest in cities. See id. at 75-77.
67. Social scientists do not agree on whether gentrification causes a decrease in crime, a
short-term increase in crime, or whether gentrification occurs after crime in a neighborhood
has already dropped. See Andrew V. Papachristos et al., More Coffee, Less Crime? The
Relationship between Gentrification and Neighborhood Crime Rates in Chicago, 1991-2005, 10 CITY
AND COMMUNITY 215, 216-18 (2011). My argument here is not about whether or not
gentrification causes or follows a decrease in crime, but rather that gentrification produces
new and different concerns for urban police departments.
68. See id. at 217-18 (noting that gentrification is typically characterized by the
displacement of poor people and that many have argued that gentrification leads to an
increase in crime, at least in the short term).
69. Id. at 216.
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B. Neoliberal Punishment
Concurrent with the neoliberalization of America, the prison
population in the United States exploded. Since 1980, the US population
housed in jails or prison has more than quadrupled, from just over 500,000
in 1980 to over 2.3 million in 2008, with an additional 5 million under some
form of supervised release. 70 By 2008, the United States incarcerated just
over one in 100 adults,71 a higher rate than any other country in the world,72
and one in thirty one adults were under some form of state supervision. 73
Like the expansion of the New York police forces in the 1990s, the
exponential growth of the American prison system may seem to be
anomalous in a neoliberal era in which the refrain of small government is
the stuff of electoral victories. Indeed, a larger prison system with its
increased government spending and therefore higher taxes seems more
Keynesian than neoliberal. But recent works from several scholars argue
that the rise of neoliberalism has a great deal to do with the making of the
more punitive and incarceral American state. Collectively their works
constitute a theoretical explanation of the massive expansion of the criminal
justice system in an age of neoliberal austerity, which may begin to explain
the expansion of New York's police force in the 1990s. As I will argue
below, however, scholars have yet to fully consider how policing functions
as an independent site of governance in the neoliberal order, a task to
which I turn my attention in the next section of this Note.
The first way that neoliberalism facilitates an expansion of the criminal
justice system is that the rise of neoliberal ideology helps justify increasingly
punitive government intervention into crime and punishment. Jonathan
Simon has shown that over the last forty years, crime has become the
central metaphor through which government intervention and coercion is
justified. 74 As the New Deal and Great Society failed and Americans
rejected equality and social welfare as a fundamental aim of government,
crime became the central justification for governance and state action,
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75. Id. at 6
76. See generally HARCOURT, supra note 10. See also Bernard E. Harcourt, Neoliberal Penality:
The Birth of Natural Order,the Illusion of Free Markets, U of Chi. L. & Econ., Olin Working Paper
No. 433; U of Chi., Pub. L. Working Paper No. 238. (2008), available at
http://ssrn.com/abstract=1278067 [hereinafter Neoliberal Penalityl.
77. HARCOURT, supra note 10, at 38-40.
78. Judge Richard Posner has literally defined criminality as market bypassing: "I argue
that what is forbidden is a class of inefficient acts." Id. at 136 (quoting Richard Posner, An
Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193,1195 (1985)).
79. HARCOURT, Neoliberal Penality, supra note 76, at 2.
80. WACQUANT, supra note 6, at 1, 307.
81. See generally KATz, supra note 35, at 283-334 (detailing the war on welfare and various
welfare reform efforts); WACQUANT, supra note 6, at 76-109 (analyzing welfare reform).
82. WACQUANT, supra note 6, at 3.
83. Here I adopt Wacquant's use of the term "hyper-incarceration" as opposed to the more
commonly used "mass-incarceration"; the former term more accurately describes the
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surplus labor, and political instability -problems endemic to the rise of the
American neoliberal state. Wacquant focuses his analysis on the advent of
"prison-fare," which replaces the New Deal and Great Society quasiwelfare state.84 As the American state pursues neoliberal policies of
deregulating the economy and defunding and restructuring welfare,
joblessness and socioeconomic inequalities rapidly increase.85 Faced with
increasing populations situated outside the reaches of the disciplinary
structure of the wage labor system, the neoliberal state reforms welfare into
prison-fare to exert social control and regulation of poor and deviant
populations and to therefore limit social instability. 86 Gilmore builds on
Wacquant's argument by suggesting that the incarceral explosion functions
as a spatial fix to structural instabilities of surplus land and labor created by
neoliberal reforms over the last forty years.87 The state, exploiting a culture
of fear, expanded the prison system to solve surpluses of land, labor, and
capital and to reconstruct state power in the realm of criminal justice.88
The above scholars thus provide a broad theoretical framework for
understanding the expansion of the state's criminal justice apparatus under
neoliberalism. 89 Harcourt and Simon's work suggests that the rise of
neoliberalism creates new opportunities for state governance, which are
particularly powerful when addressing crime. Wacquant and Gilmore
provide a theory for understanding how structural changes that occur
under neoliberalism demand an expansive penal apparatus for social
control, without which the neoliberal order would (possibly) not survive.
This body of scholarship begins to suggest the function of the police in the
neoliberal state. We should expect police departments to be larger, more
punitive, and their enforcement efforts focused on "surplus" poor
populations. But these scholars, and indeed other scholars, haven't taken a
closer look at whether police departments function in practice as their
theories on neoliberalism and crime would suggest. While scholarship on
neoliberalism and governance does not ignore police in relation to larger
concentrated nature of incarceration rates amongst poor communities of color while the latter
falsely suggests that incarceration is a broadly shared social reality. Loic Wacquant, Class, Race
& Hyperincarcerationin Revanchist America, 139 DEDALUS 74, 77-78 (2010).
84. WACQUANT, supra note 6, at 16-18.
85. See generally id. at 41-75.
86. Id. at 16-18.
87. See generallyGilmore, supra note 10.
88. Id. at 85-86.
89. It should be noted that scholars have articulated other explanations for the punitive
turn in an era of small government. Neoliberal theorist David Harvey sees increased punitive
intervention by the state as inconsistent with neoliberalism, but argues that the neoliberal state
deploys its incarceral arm to repress resistance to corporate interests. HARVEY, supra note 13, at
77. Harvey also identifies neoconservatives desire for order as another cause of the punitive
turn of the neoliberal state. Id. at 82-86. Criminologist David Garland argues that
neoconservativism and its concern with "tradition, order, hierarchy, and authority" resolve the
enigma of the rise in mass incarceration in an era of smaller government. DAVID GARLAND,
THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY 99 (2001).
Both theories can be contrasted with the above-discussed scholars, who posit that the mass
punishment is a structural facet of the neoliberal state and that both sides of the political
spectrum (not just neocons) have broadly invested in the rise of the neoliberal incarceral state.
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90. Three notable exceptions are worth mentioning here: Stephen Herbert, Policing the
Contemporary City: Broken Windows or Shoring up Neoliberalism?, 4 THEORETICAL CRIMINOLOGY
445 (2001) (arguing that broken windows policing accords with neoliberal ideology and
governmentality); Tony Roshan Samara, Policing Development: Urban Renewal as Neo-liberal
Security Strategy, 47 URB. STUD. 197 (2010) (arguing that neoliberal urban development in
Cape Town, South Africa leads to a one-dimensional security regime that emphasizes police
control and punitive repression of poor populations); Neil Smith, Global Social Cleansing:
Postliberal Revanchism and the Export of Zero Tolerance, 28 Soc. JusT. 68, 71 (2001) (arguing that
zero tolerance policing is a response to the rise of the neoliberal city and the pressures of
globalization).
91. For example, Wacquant spends a chapter of Punishing the Poor discussing new, more
punitive approaches to policing that become prevalent under neoliberalism and critiques the
criminological theory behind these approaches. See WACQUANT, supra note 6, at 243-69. But
Wacquant's extended discussion of policing does not theorize the police as an independent site
of governance. Instead, he concludes that the criminologic theories that justify new approaches
of policing under neoliberalism are significant because they "justify the rolling out of the penal
state." Id. at 269.
92. For example, one study in New York City found that the NYPD detained and frisked
about nine individuals for every person they arrested. See SPITZER, supra note 4, at 1. Given that
police do not detain most people they interact with, it is safe to assume that the vast majority
of citizen-police interactions do not lead to incarceration.
93. See Jeffrey Fagan & Garth Davies, Street Stops and Broken Windows: Terry, Race, and
Disorder in New York City, 28 FORDHAM URB. L.J. 457, 476 (2000) (noting large number of cases
that prosecutors refuse to prosecute and the high rate of dismissals of charges based on
evidentiary deficiencies).
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102. Heather Barr, Policing Madness: People with Mental Illness and the NYPD, in ZERO
TOLERANCE: QUALITY OF LIFE AND THE NEW POLICE BRUTALITY IN NEW YORK CITY 50, 63
(Andrea McArdle & Tanya Erzen eds., 2001).
103. Smith, supra note 90, at 72.
104. This is not to suggest that other American cities have not similarly been reshaped by
the rise of neoliberalism. That said, New York City is a particularly good city for the study of
policing under neoliberalism for two reasons. First, due to the fallout of the debt crisis in the
1970s, New York was neoliberalized earlier and more thoroughly than many American cities.
See HARVEY, supra note 13, at 48 (reporting that the neoliberal restructuring of New York City
pioneered "neoliberal practices both domestically ... and internationally . . .. "). Second, New
York is one of the few cities that has been studied extensively by both scholars of neoliberalism
and scholars of policing, providing a broad and deep literature to draw upon in this study.
105. See generally SMITH, supra note 66; HACKWORTH, supra note 58, at 12349.
106. HARVEY, supra note 13, at 47-48.
107. Id. at 4648.
108. See KELLING & COLES, supra note 25, at 77-102 (describing and criticizing the reform
model of policing).
109. See generally THE CITY OF NEW YORK, COMM. TO INVESTIGATE ALLEGATIONS OF POLICE
CORRUPTION AND THE ANTI-CORRUPTION PROCEDURES OF THE POLICE DEPARTMENT,
COMMISSION REPORT (1994) (reporting on corruption in the NYPD).
110. GEORGE M. KELLING AND MARK H. MOORE, THE EVOLVING STRATEGY OF POLICING,
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would thus come into office in 1992 with a mandate for reform, which he
quickly acted upon."' Rapid changes to NYPD's enforcement strategies and
internal governance structure created openings for the introduction of
neoliberal logics and technologies into its approach to policing. Far from
being an inert police department whose policing strategies reflected
decades-old social and political contexts, the NYPD's rapid restructuring
made the department's strategies and governance more up-to-date and
2
more in line with emerging neoliberal governing strategies.11
The remainder of this section analyzes policing in New York City
during the rise of neoliberal policies and practices during the 1990s. This
section is organized around three major themes of neoliberal policing in
this time period. First, I consider reforms to the governance of policing and
security in New York City under neoliberalism. I argue that the rise of
quasi-governmental organizations and new management structures within
the NYPD led to policing that is more accountable to corporate and elite
institutions and less accountable to marginalized communities. Second,
under neoliberalism, the NYPD adopted an order-maintenance policing
strategy that focused on policing people seen as disorderly, which were
most often poor people of color. I contend that order-maintenance policing
accorded with neoliberal ideologies around personal responsibility and
resulted in the increasing deployment of the police to deal with the effects
of poverty under neoliberalism. In the final part of this section, I focus on
the NYPD's adoption of stop-and-frisk policing as their primary tool of
order-maintenance policing. I suggest that stop-and-frisk policing functions
as a form of public punishment used to regulate poor communities. Taken
together, the NYPD's approach to policing under neoliberalism produces
punitive policing that disproportionately targets poor communities and
communities of color. This neoliberal approach to policing not only
stigmatizes members of these communities, but also erodes the legitimacy
of the police and thereby prevents the co-production of security.
B. Shifting Accountabilities: Policing as Neoliberal Governance
In 1995, The New York Times broke a story about a "goon squad" hired
by the Grand Central Partnership that "threatened, bullied and attacked
homeless people to force them from doorways, bank vestibules, plazas and
sidewalks all over Manhattan. "113 Businesses in midtown formed the Grand
Central Partnership in the late 1980s as a Business Improvement District
(BID), a formal organization that can levy taxes on its members and provide
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more than forty BIDs in New York City.120 In 2009, there were sixty four
BIDs in New York City cumulatively collecting and spending nearly $100
million in revenues. 121 Under New York law, BIDs are authorized to make
physical improvements to the public and private spaces within its their
districts and to provide "additional services required for the enjoyment and
protection of the public and the promotion and enhancement of the district
. ... "122 Functions performed by BIDs often included "sanitation, graffiti
removal, market support, and improvements, such as fixing or installing
street lights, landscaping, seasonal decorations, etc."1 23 Many BIDs also
provided services to the homeless and conducted security patrols within
the boundaries of the BID.124 The rise of BIDs supplemented the NYPD's
order-maintenance policing efforts (see discussion infra).125 Security teams
for BIDs worked to keep streets clean not only of serious crime like drug
dealing but also free of disorderly people.126 By many accounts, BIDs were
successful in creating cleaner and more orderly neighborhoods throughout
New York. For example, BIDs have been seen as instrumental to the
successes for the clean up of the neighborhood around Grand Central,
Bryant Park, and Times Square.127
The rise of BIDs reflected a move towards a public-private model of
neoliberal governance, where local governments increasingly rely on the
private sector for the provision of essential services.128 Many scholars have
noted the wave of private security firms providing security services
traditionally allocated by the police.129 This trend represents the policy
implementation of the neoliberal logic that private firms can more
efficiently provide public services than the government."s0
The rise of BIDs' private security functions presents significant
problems of accountability. Traditionally, democratically elected officials
serve as a check on the use of police power. Democratic structures of
accountability ensure that policing practices at least nominally reflect the
values and norms of the communities the police are policing and
theoretically limit the influence special interest groups have on the police at
120. Richard Briffault, A Governmentfor Our Time? Business Improvement Districts and Urban
Governance, 99 COLUM. L. REV. 365, 366-67 (1999).
121. N.Y.C. SMALL BUSINESS SERVICES, BID FISCAL YEAR 2009 ANNUAL REPORT SUMMARY 911 (2009), http://www.nyc.gov/html/sbs/html/neighborhood/pdfs/BID AnnualReport
.pdf.
122. N.Y. GEN. MUN. LAW 980-c (McKinney 1999).
123. Barr, supra note 102, at 64.
124. Id.; Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers,
Skid Rows, and Public-Space Zoning, 105 YALE L.J. 1165, 1199 (1996).
125. Ellickson, supra note 124, at 1199.
126. Id.
127. Barr, supra note 102, at 64; see also KELLING & COLES, supra note 1, 112-14 (describing
the clean up of Bryant park and the Grand Central neighborhood).
128. HARVEY, supra note 13, at 160-61.
129. MANFRED B. STEGER & RAVI K. Roy, NEOLIBERALISM: A VERY SHORT INTRODUCTION 1214 (2010).
130. Id.
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the expense of the majority of citizens. 131 But BIDs are not subject to the
same oversight as traditional police departments. BIDs are a private, quasipolice force acting on the behalf of their funders, which would not
necessarily present accountability problems if BIDs only policed their own
members. But BIDs exercise police powers over areas much broader than
just their members' buildings including quasi-public spaces like plazas in
front of office buildings and in public spaces like sidewalks and parks. To
the extent that many of the people being policed by BIDs have no ability to
affect the BIDs' practices (lawsuits notwithstanding), BIDs' security forces
represent an expansion of policing power that is only accountable to its
corporate funders.132 Put another way, BIDs are policing without
representation.
Corporations and financial institutions also exercise increased power
over the policing activities of the NYPD during the neoliberal era. As
explained above, in the aftermath of the corporate bailout of the city of New
York, corporate and financial institutions wielded significant influence over
city politics and policies. This influence extended to the city's police
functions. For example, in 1996, downtown BIDs urged Mayor Giuliani to
crack down on street vendors, who were accused of creating sidewalk and
traffic congestion, disrupting the business of brick and mortar stores, and
impeding the BIDs' attempts to develop New York into the world financial
capital. 33 Mayor Giuliani responded by creating a vendor review board,
which severely limited the number of business licenses granted to vendors,
and by directing the NYPD to crack down on street vendors. 134 Under the
guise of quality-of-life enforcement, the NYPD began issuing heavy fines to
street vendors, often for violating technical details of their business
licenses. 135 The NYPD continued its anti-vendor campaign for several years,
selectively targeting vendors in Chinatown for business license violations
and attempting to evict licensed street vendors from the places they
conducted their business.
The anti-vendor campaign evoked strong reaction from street vendors,
who helped lead citywide protests of Giuliani's quality-of-life policing and
resisted police-led evictions by taking over and occupying the markets from
131. Democratic oversight of the police may be achieved through the executive branch,
which may have the power to prosecute crimes by police officers or remove politically
appointed leaders, and through the legislative branch, which can investigate police
misconduct and control funding for police departments. Additionally, many cities have some
form of civilian oversight of the police in the form of civilian review boards that may have the
power to investigate, prosecute, and discipline officers or in the form of civilian auditors or inhouse civilian investigators. See Stephen Clarke, Arrested Oversight: A ComparativeAnalysis and
Case Study of How Civilian Oversight of the Police Should Function and How it Fails, 43 COLUM.J.L.
& Soc. PROBS. 1, 11-20 (2009) (describing different models of civilian oversight of the police).
132. C.f. David A. Sklansky, The PrivatePolice, 46 UCLA L. REV. 1165, 1191-92 (1999) (noting
that "those who come into contact with private guards but do not help to pay for them may
not welcome the fact that such guards are accountable exclusively to their customers").
133. Committee Against Anti-Asian Violence, Police Brutality in the New Chinatown, in ZERO
TOLERANCE, supra note 101, at 221, 232 [hereinafter Police Brutality in Chinatown].
134. Id.
135. Id. at 232-33.
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which the police were attempting to displace them.136 But the street
vendors' organized resistance was quashed by increased police harassment
in the form of fines and confiscation of vendors' carts.137 Moreover,
Chinatown business elites, in the form of the Chinese Consolidated
Benevolent Association, helped disrupt and co-opt the vendor protest
movement by purporting to represent the vendors' interests in negotiating
a truce with the city. 38
Neil Smith has also shown how city leaders under neoliberalism deploy
the police to support processes of gentrification, often at the behest of the
corporate developers who stand to profit from neighborhoods cleared of
homeless people, poorer residents, and the mentally ill.139 In cases of
gentrification and street vendors, business elites were able to use their
influence over city leaders to marshal police resources on their behalf. The
deployment of police to clear street vendors and obstacles of development,
in turn, cleared the way for the further progression of neoliberal processes
of gentrification and the creation of sanitized, business-friendly
neighborhoods.
While elite institutions wielded increasing influence over the city's
policing functions, the NYPD did not create an effective mechanism to
ensure that it was responsive to the articulated policing priorities of poor
communities. In the early 1990s, other cities across the country were
experimenting with community policing structures in attempts to increase
police accountability to all communities and improve police-community
collaboration.140 The NYPD, however, rejected community-policing models
and instead turned to "smart policing" technologies to guide enforcement
priorities for the NYPD. Under Police Commissioner William Bratton's
leadership, the NYPD evaluated precinct performances through a computer
program called Compstat that produced statistical analyses of patterns of
crimes and transposed those patterns onto precinct maps throughout the
cities.141 Bratton and his top advisors would have weekly meetings where
they would interrogate precinct commanders about how each commander
136. Andrew Hsiao, Chinatown Take Out, VILLAGE VoIcE, Feb. 16, 1999 available at
http://www.villagevoice.com/content/printVersion/214691; Police Brutality in Chinatown,
supra note 133, at 233.
137. Police Brutality in Chinatown, supra note 133, at 232-33.
138. Id. at 235-36.
139. SMITH, supra note 66, at 24, 223-25.
140. For example, Chicago adopted a system of community policing around 279 of the
city's beats and made efforts to include local residents in police priority setting decisions. See
generally, Wesley G. Skogan, Community Policing in Chicago, in COMMUNITY POLICING 159-73
(Geoffrey P. Alpert & Alex Piquero eds., 1998) (describing and evaluating Chicago's
community policing system). San Diego adopted a problem-oriented policing approach that
emphasized community-police collaboration in efforts to reduce violent crime through
preventative and reactive policing measures. Jeffrey Fagan, Policing Guns and Youth Violence, 12
THE FUTURE OF CHILDREN 133, 139-40 (2002). The Boston Police Department refocused its
youth violence prevention efforts by increasing community collaboration and working closely
with community-based organizations. Anthony A. Braga, et. al, Losing Faith? Police, Black
Churches, and the Resurgence of Youth Violence in Boston, 6 OHIO ST. J. CRIM. L. 141, 145-58 (2008).
141. BRATTON, supra note 111, at 233-34.
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was addressing the crime patterns in their precincts. 142 The meetings were
often quite tense, with precinct commanders being grilled about their
performance in front of their peers.143 Police commissioners, in turn, were
expected to impose the same sort of accountability structure within their
precincts, systematically evaluating the performance of their officers
around the crime patterns and statistical problems identified in the
Compstat meetings.144 As Compstat became the primary tool to evaluate
precinct and officer performance, it became the driving force behind setting
police enforcement priorities and strategies, 145 a role which it continues to
play to this day. 14 6
The reorganization of the NYPD around Compstat reflects a broader
trend in neoliberal governance where the public sector appropriates private
sector management and organizational technologies. Neoliberal critiques of
government are based on the assumption that government bureaucracies
tend to be far more inefficient than private sector organizations. 147 The
incorporation of private-sector organizational systems is a central strategy
of the neoliberal reform of urban governance.148 In his own words, Bratton
sought to "reengineer[]" the NYPD around "private-sector business
practices and principles for management." 149 Compstat, with its emphasis
on number-based performance reviews and attempts to rationalize and
systematize the NYPD's policing practices, represented the inculcation of a
"business model and managerial philosophy" into the NYPD.1so
On some fronts, Compstat may have improved police accountability.
Compstat has widely been praised for improving accountability within the
NYPD, as it is a mechanism to ensure that police officers and precinct
commanders are doing their job and not wasting scarce state resources. 51
Compstat may have also improved accountability by ensuring that the
See id. at 233-37 (describing weekly Compstat meetings).
Id.
Id. at 239.
Id.; Fagan & Davies, supra note 93, at 491.
Graham Rayman, NYPD Commanders Critique Comp Stat And The Reviews Aren't Good,
THE VILLAGE VOICE, Oct. 18, 2010, http://blogs.villagevoice.com/runninscared/2010/
10/nypd commanders.php.
147. STEGER & Roy, supra note 129, at 14-16.
148. STEGER & Roy, supra note 129, at 12-13.
149. BRATTON, supra note 111, at 224; See also HARCOURT, supra note 3, at 49 (" [Bratton]
implemented a business school management-theory approach that brought him a coterie of
business school admirers.") (internal quotations omitted).
150. David A. Sklansky, The Persistent Pull of Police Professionalism, HARVARD KENNEDY
SCHOOL EXECUTIVE SESSION ON POLICING AND SAFETY: NEW PERSPECTIVES IN POLICING 3
(March 2011), availableat http://www.hks.harvard.edu/var/ezp-site/storage/fckeditor/file/
pdfs/centers-programs/programs/criminal-justice/ExecSessionPolicing/NPIPThePersistentPullofPoliceProfessionalism-03-11.pdf.
151. See, e.g., BRATTON, supra note 111, at 232-39 (describing how Compstat created internal
accountability throughout the NYPD); William F. Walsh & Gennaro F. Vito, The Meaning of
Compstat: Analysis and Response, 20 J. OF CoNTEMP. CRIM. Jus. 51, 60 (2004) (praising Bratton's
Compstat as creating internal organizational accountability). See also James J. Willis, et. al,
Making Sense of COMPSTAT: A Theory-Based Analysis of Organizational Change in Three Police
Departments, 41 L. & Soc. REV. 147, 164 (2007) (finding that Compstat made middle-level
managers more accountable in three police departments).
142.
143.
144.
145.
146.
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152. Some scholars claim that Compstat helped cause the precipitous drop in crime in
New York City in the 1990s. See, e.g., Paul E. O'Connell, The New York City Police Department's
Compstat Program, in MANAGING FOR RESULTS 2002 (Mark A. Abramson & John M. Kamensky
eds., 2001). But see Steven Levitt, Understanding Why Crime Fell in the 1990s: Four Factors That
Explain the Decline and Six That Do Not, 18 J. ECON. PERSP. 163, 172-73 (2004) (arguing that new
policing strategies adopted in the 1990s did not cause a drop in crime rates).
153. BRATTON, supra note 111, at 239; Fagan & Davies, supra note 93, at 491. See also, Walsh
& Vito, supra note 151, at 65 ("[Compstat] was put into action to resolve the inability of
community policing and of the nation's largest police department to address crime and to
provide community security.").
154. Although precinct commanders continued to meet with community groups, they
were now accountable to the NYPD's operational hierarchy for both their successes and their
failures to produce declining crime rates. As a result, precinct commanders set the crimefighting priorities for that precinct and developed overall plans of action, based on meeting
NYPD priorities, rather than the standards set in cooperation with communities." Fagan and
Davies, supra note 93, at 472. For a more recent example of the sort of accountability Compstat
demands of rank-and-file police officers, see Graham Rayman, The NYPD Tapes: Inside BedStuy's 81st Precinct, THE VILLAGE VOICE, May 4, 2010 (secret tapes "reveal that precinct bosses
threaten street cops if they don't make their quotas of arrests and stop-and-frisks, but also tell
them not to take certain robbery reports in order to manipulate crime statistics.").
155. Walsh & Vito, supra note 151, at 66.
156. Christopher Stone & Jeremy Travis, Toward a New Professionalismin Policing, HARVARD
KENNEDY
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for a departure from the traditional model of 911 policing, in which police
officers stayed in patrol cars, separated from communities they patrolled,
and policed by reacting to emergency calls. 1" They argued that the 911
policing strategy had failed to address the needs of urban communities, as
it did not address a fundamental cause of fear, insecurity, and serious
crime: disorder. 165
Wilson and Kelling contended that policing disorder should be a vital
priority of an urban police department for two reasons. First, disorder
makes urban dwellers feel insecure and fear public spaces in their
neighborhoods. Second, disorder causes more serious crime. Wilson and
Kelling analogized that low-level disorder is like an unrepaired broken
window. A broken window that a property owner does not care to fix leads
to more broken windows, as "one unrepaired broken window is a signal
that no one cares, and so breaking more windows costs nothing. (It has
always been fun.)"1 66 Like broken windows, disorder in a neighborhood
invites criminality because it sends a signal to potential criminals that
residents of a neighborhood do not care or cannot control what happens
there. "If the neighborhood cannot keep a bothersome panhandler from
annoying passersby, the thief may reason, it is even less likely to call the
police to identify a potential mugger or to interfere if the mugging actually
takes place." 6 7 Moreover, because disorder tends to make residents fear the
public spaces in their own neighborhood, it causes informal community
controls of behavior in public spaces to breakdown.168 Kelling and Wilson
argue that such break down of community controls leads to a
neighborhood that is vulnerable to criminal invasion. Though it is not
inevitable, it is more likely that here, rather than in places where people are
confident they can regulate public behavior by informal controls, drugs will
change hands, prostitutes will solicit, and cars will be stripped; that the
drunks will be robbed by boys who do it as a lark, and the prostitutes'
customers will be robbed by men who do it purposefully and perhaps
violently; that muggings will occur.169
Thus, low-level disorder - described as drunks, panhandlers, loiterers,
and prostitutes-breaks down the social controls of a community and leads
to more serious crime. The solution that Wilson and Kelling suggest is that
the police should get out of their cars, walk a beat, and police disorder. This
order-maintenance policing approach will lead to drops in crime because
the police can "reinforce the informal control mechanisms of the
community itself."170
164.
165.
166.
167.
168.
169.
170.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
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171. See generally Robert J. Sampson & Jacqueline Cohen, Deterrent Effects of the Police on
Crime:A Replication and Theoretical Extension, 22 LAw & Soc'Y REV. 163 (1988).
172. Id. at 165.
173. See HARCOURT, supra note 3, at 10-11 (arguing that if order-maintenance policing has
an effect on crime, "the primary engine is probably the enhanced power of surveillance offered
by a policy of aggressive stops and frisks and misdemeanor arrests").
174. David Thacher, Order Maintenance Reconsidered: Moving Beyond Strong Causal
Reasoning, 94 J. CRIM. L. & CRIMINOLOGY 381,410 (2004).
175. Thacher emphasizes that the police must take "a nuanced approach to order
maintenance that eschews general prohibitions and asks officers to consider context closely."
Id. at 409.
176. HARCOURT, supra note 3, at 47-48; BRATTON, supra note 111, at 228-29.
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177. HARCOURT, supra note 3, at 47; BRATTON, supra note 111, at 212-13. Squeegee men
stood at busy intersections and cleaned windshields for a small fee as drivers waited in traffic.
Mayor Guliani and other critics claimed that squeegee men provided their services without
permission of drivers and aggressively solicited payment for their unwanted services. Return
of Squeegee Men, N.Y, PRESS, July 26, 2006, http://www.nypress.com/article-14010-return-ofthe-squeegee-men.html.
178. HARCOURT, supranote 3, at 47-48.
179. Id. at 48-49.
180. BRATTON, supra note 111, at 152.
181. See generally id. at 152-64.
182. See HARCOURT, supra note 3, at 48.
183. Id.
184. Bratton claimed that one out of every seven people arrested for fare evasion had an
outstanding warrant, while one in twenty-one was carrying a weapon. See BRATFON, supra note
111, at 154.
185. Id. at 180.
186. Id. at 228.
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http://www.unafei.or.jp/english/pdf/RS_- No68/
IN NEW
YORK
CITY
1,
LIFE
No68_11VE_Henryl.pdf ("According to New York Police Department (NYPD) figures, the
total number of reported crimes for the seven major crime categories declined an
unprecedented 65.99% in 2003 from the levels reported in 1993.").
189. See HARCOURT, supra note 3, at 59-121 (reviewing studies that claim to establish that
order-maintenance policing led to less crime).
190. See id. (demonstrating that no previous study has reliably established a causal
relationship between order-maintenance policing and drops in crime rates).
191. Robert J. Sampson & Stephen W. Raudenbush, Systematic Social Observation of Public
Spaces: A New Look at Disorder in Urban Neighborhoods, 105 AM. J. Soc. 603, 637 (1999) (finding
that levels disorder do not have a direct effect on crime, with the exception of robbery, where
the impact of disorder was modest).
192. HARCOURT, supra note 3, at 141-50.
193. Id. at 213.
194. Id. at 183.
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195. For example, in planning a major program to target drug users, Commissioner
Bratton's staff reported that "[Bratton] doesn't care ... if they can find treatment if they want
it .... He wants to get them locked up. And if they get right out, he wants to get them locked
up again...." BRATrON, supra note 111, at 277.
196. Herbert, supra note 90, at 458.
197. See supra notes 83-88 and accompanying text.
198. Herbert, supra note 90, at 458.
199. See Sampson & Raudenbush, supra note 190, at 622-30 (finding that observed
neighborhood disorder is strongly correlated with structural poverty and concentrated
disadvantage); Robert J. Sampson & Stephen W. Raudenbush, Disorder in Urban
Neighborhoods - Does It Lead to Crime?, National Institute of Justice: Research in Brief, February,
2001, at 2. (" [Bloth crime and disorder stem from structural characteristics specific to certain
neighborhoods, most notably concentrated poverty and the associated absence of social
resources."); SKOGAN, supra note 24, at 59 (finding that disorder is correlated with poverty).
200. It should be noted that at least theoretically, Broken Windows theory does not rely on
punitive responses to low level disorder. Thacher has argued that there exists wide variation
between the Broken Windows theory based police practices in different cities, with some cities
like New Haven applying a highly nuanced and context specific approach to the policing of
disorder. See Thacher, supra note 174, at 391-97. For example, the New Haven Police
Departments "Order Maintenance Training Bulletin" instructs officers to "use the least forceful
means possible to achieve its purposes." Id. at 392 (italics omitted). What I argue here is that
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Broken Windows policing was applied in New York City in a particularly punitive manner.
Moreover, as I argue below, Broken Windows theory has punitive potential as it invests the
police, an inherently punitive institution, in solving disorder.
201. Herbert, supra note 90, at 451.
202. "What the police in fact do is to chase known gang members out of the project. In the
words of one officer,'We kick ass."' Kelling and Wilson, supra note 163.
203. BRATTON, supranote 111, at 229.
204. Fagan & Davies, supra note 93, at 476.
205. Id.
206. Id.
207.
208.
209.
210.
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lack of public restrooms throughout the city. 211 The NYPD also became
active in removing-through-arrest the homeless from public parks.21 2 By the
late 1990s, Giuliani was announcing that " [s]treets do not exist in civilized
societies for the purpose of people sleeping there" and the Police
Commissioner, Howard Safir, reported that the NYPD would arrest
homeless people who did not agree to sleep in a shelter. 213 Second, ordermaintenance policing resources came to be concentrated in neighborhoods
with higher levels of disorder, which tend to be poorer.214 Finally, order
maintenance policing may have become focused on poor neighborhoods
through the proxy of race. Robert Sampson and Stephen Raudenbush have
shown that perceptions of disorder are largely a function of the racial
composition of a neighborhood, with black neighborhoods being perceived
as far more disordered by outsiders, all other variables held equal. 215 As
communities of color tend to be sites of concentrated poverty, racialized
perceptions of disorder may indirectly lead to more policing of poor
persons.
Perhaps it would be useful to take a step back and consider how the
neoliberal state is deploying the police under order-maintenance policing.
As discussed earlier, federal, state, and local governments retract social
welfare services as a key neoliberal reform. 216 In other words, the neoliberal
state, with its emphasis on individual responsibility, is not fully committed
to addressing the problems of poverty through social services. Yet, the
problems of poverty do not go away. Poor communities are still sites of
physical disorder and violence. These impoverished communities pose
several problems to the neoliberal state: they impede urban development
(gentrification), they pose a security risk (whether it is imagined is beside
the point), they represent a potentially destabilizing political force (from
urban riots of the 1960s to L.A. riots in the 1990s), and they are a highlyvisible, symbolic reminder that the promise of neoliberalism has not
benefitted all Americans. But because of neoliberal logic around individual
responsibility, the neoliberal state does not attempt to remedy the
underlying cause of the "threat" that these communities pose to social
tranquility and economic development. Instead, in an era of governance
through crime, 217 the neoliberal state turns to punitive solutions to address
the effects of poverty. It is here that we can begin to see why ordermaintenance policing becomes an attractive approach. Employing core
neoliberal ideologies, order-maintenance policing functions structurally as
one of the neoliberal state's primary technologies to deal with the effects of
211. See Tanya Erzen, Turnstile jumpers and Broken Windows: Policing Disorder in New York
City, in ZERO TOLERANCE, supra note 101, at 19, 35-45 (listing the quality-of-life offenses).
212. SMITH, supra note 66, at 223-25.
213. Barr, supra note 102, at 62.
214. Fagan & Davies, supra note 93, at 461-62.
215. See generally Robert J. Sampson & Stephen W. Raudenbush, Seeing Disorder:
Neighborhood Stigma and the Social Construction of "Broken Windows," 67 SOC. PSYCHOL. Q. 319
(2004).
216. See supra Part II.A.
217. See supra notes 74-75 and accompanying text.
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218. But see Thacher, supra note 174, at 410-11 (arguing that the police are necessary to
eliminating disorder as informal community sanctions are generally ineffective unless they are
supported by formal sanctions).
219. Barr, supra note 102, at 55. While some of the decrease in mental health spending may
have come from the deinstitutionalization of the mentally ill, Barr argues that
deinstitutionalization became a convenient vehicle for cutting spending for the mentally ill
and that it allowed the further underfunding of mental health. Id.
220. Id. at 57.
221. Id. at 73.
222. Id. at 73-74.
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223. Id.
224. Id. at 54.
225. Id. at 69.
226. Harcourt notes that the rates of institutionalization of the mentally ill under the
Keynesian state were high, with the aggregate mental hospital, prison, and jail rate in this
earlier era approximating the aggregate rate under neoliberalism. Nonetheless, he
distinguishes between the Keynesian era of institutionalization and the noeliberal era of
incarceration on the basis of a fundamental difference in the logic that justified state coercion.
Whereas state coercion in the Keynesian era was based on rehabilitation and treatment,
neoliberal state coercion is premised on "criminalization, marginalization, and carceral
punishment of the criminal outcast." He argues that the neoliberal form of state coercion in the
form of totalizing institutions is different in kind than Keynesian institutionalization as they
involve "a certain kind of penal excess." HARCOURT, supra note 10, at 223-24.
227. See supranote 86 and accompanying text.
228. See Bernard E. Harcourt, Reflecting on the Subject: A Critique of the Social Influence
Conception of Deterrence, the Broken Windows Theory, and Order-MaintenancePolicing New York
Style, 97 MicH. L. REV. 291, 292-93 (1998) (noting the overwhelmingly positive treatment of
order-maintenance policing by the media and scholars).
229. See discussionsupra notes 190-191 and accompanying text.
230. For example, several cities have recently launched efforts to eliminate panhandling.
See, e.g., Dominic Holden, The Law that Targets Strange People on the Street, THE STRANGER, Apr.
13, 2010, http://www.thestranger.com/seattle/the-law-that-targets-strange-people-on-thestreet/Content?oid=3846937 (describing the Downtown Seattle Association and the Greater
Seattle Chamber of Commerce's campaign to pass anti-panhandling laws); Larry Copeland
and Charisse Jones, Atlanta Puts Heat on Panhandlers, USA TODAY, Apr. 15, 2005,
http://cuimpb.cat/politiquesurbanes/docs/Num_31_ijur_829.pdf.
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and perpetuate vast disparities in who is incarcerated and hyperconcentration of incarceration in certain neighborhoods. 231 Moreover, given
that the policing of disorder has been carried out with no solid structures of
accountability to the communities being policed, order-maintenance
policing may erode police legitimacy and thereby undermine communities'
ability to exert control over public space (a task in which police-community
collaboration is almost a necessity).232
None of this is to say that cities should not be concerned with disorder.
I would imagine that a near consensus of city dwellers would prefer to live
in neighborhoods without blight and free of homelessness and public
alcoholism. But I would argue that the solution to homelessness lies not in
arrest and exile (incarceration) but in better shelters and improved mental
health care. The solution to public drinking is not punitive policing but
drug abuse counselors. The problem lies in the fact that in a neoliberal
era -one that emphasizes personal responsibility and in which crime has
become the justification for government intervention- the police seem like
the natural response to disorder and the poverty that drives it.
D. Stop-and-Frisk: The Rise of Public Punishment
If order-maintenance policing positions the police to be one of the
neoliberal state's primary responses to the problems of poverty, then how
are the police dealing with poverty? In the previous section, I suggested
that using the police to address disorder under neoliberalism creates a
punitive bind, in which police officers have almost no choice but to use
punitive techniques to address disorder. But how do punitive policing
solutions to poverty function within a larger system of neoliberal
governance? And what shape do those punitive techniques take?
The NYPD's adoption of stop-and-frisks as its primary tool of policing
in the early-1990s helps begin to answer these questions. Stop-and-frisk
policing refers to the practice of police officers briefly detaining individuals
suspected of crimes and conducting a pat-down search of their clothing for
weapons.233 Not only is stop-and-frisk policing the most prevalent policing
tactic used by the NYPD, it is of increasing national relevance as cities
across the country follow New York's lead and conduct hundreds of
thousands of stop-and-frisks annually.234 While a police officer's use of
stop-and-frisk techniques is constitutionally justified in certain
circumstances as a protection of officer and community safety, I argue that
the use of stop-and-frisk policing in neoliberal New York has gone far
beyond safety concerns. Instead, stop-and-frisk has two primary functions.
First, using disorder as a pretext for detaining and searching people on the
231. This argument does not suppose that policing disorder directly leads to mass
incarceration but rather that consistent run-ins with the police and arrests for minor offenses
can reduce policed individuals' investment in legitimate/legal behavior.
232. Fagan & Davies, supra note 93, at 499-500.
233. See discussion infra notes 235-238 and accompanying text.
234. STOP, QUESTION & FRISK, supra note 5, at 5.
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number of stops has rapidly increased over the last ten years, with over
575,000 stops documented in 2009.241 As not every stop-and-frisk event was
documented, the actual number of Terry stops conducted by the NYPD is
probably much higher. 242 Evidence indicates that stop-and-frisk policing is
a frequent and growing police practice in other cities across the country as
well. 243
The origins of the NYPD's turn to Terry stops as a primary tool of
policing are somewhat murky. The heads of the NYPD never issued a
memo that specifically instructed officers to increase their use of Terry
stops.244 Nonetheless, it is clear that the NYPD intended for the stop-andfrisk approach to be a key part of its order-maintenance policing efforts and
its campaign to get weapons off the streets. 245 NYPD officers deployed stopand-frisk as a tool of quality-of-life policing, perhaps as a sub-arrest
intervention into disorderly behaviors. 246 About ten percent of all
Terry stops documented between January 1998 and March 1999 were for
quality-of-life offenses. 247 The NYPD also appeared to use stop-and-frisks
specifically to get weapons off the street. Over the period of the Attorney
General's study, thirty four percent of documented stops were for
suspected weapon possession.248
Although at least one study has drawn a line between the NYPD's Terry
stops under order-maintenance policing and stops under weapons
policing,249 it is not at all clear that such a distinction existed. Instead, it is
more likely that functionally the NYPD used quality-of-life offenses as
pretext for more serious policing like weapons enforcement. That is, police
officers used a suspect's violation of quality-of-life ordinances as legal
pretext to search that person for weapons. Although this approach was not
officially announced in any internal memoranda by the NYPD, it is clear
that it was part of the intention behind Bratton's Quality of Life Initiative.
When Commissioner Bratton oversaw the transit police, he found that one
in seven people arrested for quality-of-life offenses had outstanding
warrants and one in twenty-one was carrying some type of weapon.2so
Quality-of-life policing in the subway, for Bratton, was not so much about
eliminating disorder as it was about using disorder as a pretext for finding
more serious offenders. 251 When Bratton brought the order-maintenance
approach to the NYPD, he saw it as a tool not just to end disorder but also
to get weapons off the street. As one of Bratton's advisors explained, "Your
open beer lets me check your ID . . . Now I can radio the precinct for
241.
242.
243.
244.
245.
246.
247.
248.
249.
250.
251.
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the NYPD's surveillance power. 259 Once the NYPD linked stop-and-frisk to
policing disorder, the number of people that could be searched expanded
exponentially. To find pretext of a quality-of-life violation is not
particularly difficult for a police officer. 260 She has at her disposal any of the
twenty-five or so quality-of-life violations referenced in the NYPD Quality
of Life Enforcement Options Reference Guide, 261 not to mention vague and
relatively easy to establish crimes like disorderly conduct. Once a police
officer detains an individual, she doesn't need much cause to search the
suspect. For example, under the Constitution, an officer can generally
search an individual she reasonably believes was involved in trafficking
drugs, and will be justified in a pat-down search when the suspect makes
furtive movements in the area of their waistband. 262 Moreover, civil
lawsuits and civilian complaints are notoriously weak incentives to get
officers to improve their conduct, so constitutional and other forms of legal
regulation may be poor deterrents for preventing illegal Terry stops. 263 In
most instances, officer abuse of stop-and-frisk will go unreported. All of
this is to say that when stop-and-frisk tactics become linked to disorder
policing and their unlawful application is generally unrestrained by legal or
political structures, police officers have wide discretion to detain and pat
down huge numbers of citizens (and indeed may be required to by their
supervisors). 2M This potentially massive expansion of police surveillance
may enable police officers to root out more weapons from the street but it
also brings with it serious costs. The rest of this Section will outline those
costs, which include widespread infringement on individuals' privacy and
liberty interests, racially discriminatory and stigmatizing policing, and loss
of police legitimacy.
Increased surveillance leads to intrusions upon individuals' privacy
rights and liberty interests. A Terry stop, while less invasive than an arrest,
can be a serious intrusion into individuals' liberties. As the Supreme Court
recognized in Terry, "[e]ven a limited search of the outer clothing for
weapons constitutes a severe, though brief, intrusion upon cherished
personal security, and it must surely be an annoying, frightening, and
perhaps humiliating experience." 265 Moreover, the experience of being
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subjected to a Terry stop can be more traumatizing for individuals who are
innocent of any crime. 266 But the fact that a policing tactic leads to violations
of individuals' rights may not be particularly troubling if they are merely
occasional and shared across diverse communities. Indeed, every police
tactic will inevitably violate some people's rights; it is only when those
violations are particularly egregious, where only some communities
shoulder most of their costs, or when they happen with high frequency,
that we should be particularly concerned.
Research into stop-and-frisk policing, however, indicates that the
NYPD's use of Terry stops is concentrated in certain communities and, as a
result, occurs within those communities at a high frequency. A 1999 study,
authored by then New York Attorney General Eliot Spitzer, of over 175,000
Terry stops from January 1998 to March 1999, revealed significant
disparities in the targets of stop-and-frisk policing.267 Across the city, blacks
and latinos were stopped at disproportionately high rates as compared to
white New Yorkers. The report found that "blacks were over six times more
likely to be 'stopped' than whites in New York City, while Hispanics were
over four times more likely to be 'stopped' than whites in New York
City." 268 When controlling for differentials in crime rates by racial groups,
the report's analysis revealed that in aggregate across all crime categories
and precincts citywide, "blacks were 'stopped' 23% more often (in
comparison to the crime rate) than whites. Hispanics were 'stopped' 39%
more often than whites." 269 As one might expect given the disparities
between stop rates and crime rates for people of color, stops of black and
latino New Yorkers were less likely to result in arrests than for whites.
"[Plolice 'stopped' 9.5 blacks for every 'stop' that yielded an arrest, and 8.8
Hispanics, but only 7.9 whites per one arrest. Because of the large number
of cases sampled, luck or random chance cannot explain why police
'stopped' 1.6 more blacks than whites to achieve an arrest." 270
The Attorney General's report also shows that Terry stops happen with
much higher frequency in neighborhoods with more people of color.
Spitzer's report found that nine of the ten precincts with the highest stop
rates in the city were majority-minority precincts, a result which was in
"stark divergence from the City as a whole, in which almost half of the
266. See generally SPITZER, supra note 4, at 76-87) (reporting on interviews with civilians
about their experiences of stop and frisk policing in New York City).
267. See generally id. at 88-174. The study included a statistical analysis of nearly 175,000
stop-and-frisk events from January 1998 to March 1999 documented on UF-250 forms. Officers
were mandated to complete these forms each time they stopped a person by use of force,
frisked or searched a person, arrested a person, or stopped a person and the suspect refused to
identify himself. The forms included such information as the race of the person stopped,
where the person was stopped, the suspected charge, and whether the person stopped was
frisked. The statistical analysis revealed patterns of use of stop-and-frisk citywide but also
disaggregated by race and precinct. The study also analyzed a sample of the reports to
determine how many of stops were justified under Terry or other constitutional standards.
268. Id. at 95.
269. Id. at 123.
270. Id. at 111.
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precincts (48%) are majority-white." 271 The report found that the
disproportionately high frequency of stops in districts with populations
that were composed of a majority of people of color was still present when
it controlled for differences in crime rates between precincts. 272 In other
words, differences in crime rates between precincts do not explain
disparities in stop rates between majority white and majority people of
color precincts. Finally, it should be noted that racial disparities in
enforcement frequency between different precincts are in part explained by
differences in poverty rates by geographic area. Using the Attorney
General's data, Jeffery Fagan and Garth Davies ran a multivariate analysis
to isolate causes that explain racial differences in stop-rate. Fagan and
Davies found that "after controlling for crime, stops within the subboroughs were predicted by their poverty rates. Accordingly, policing in
the city's neighborhoods appears to reflect the economic status of people
"273
2003).
276.
277.
278.
279.
Id. at 209.
SPITZER, supra note 4, at 79.
Id. at 82.
Id. at 84.
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284. See supra notes 152, 189 and accompanying text. But see supra notes 190-191 and
accompanying text.
285. See examples cited supra note 140.
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